Learning about SDOs is valuable for students.
Coglianese 19 – Edward B. Shils Professor of Law and Professor of Political Science at the University of Pennsylvania, former Professor at Harvard University, Senior Fellow of the Administrative Conference of the United States, PhD in Political Science, M.A. in Public Policy, and J.D. from the University of Michigan.
Cary Coglianese, “Private Standards and Public Governance, by Cary Coglianese,” Yale Journal of Regulation, 10-09-2019, https://www.yalejreg.com/nc/private-standards-and-public-governance-by-cary-coglianese/
All those in the legal profession ought to know more about the world of private standard setting. In the first instance, private standards interact with the law and the legal system on a regular basis. Private standards, for instance, actually “govern” the handling of criminal evidence in many forensic laboratories around the country. They also often define the duty of reasonable care in tort law. The requirements of private standards are woven into—or incorporated by reference into—myriad business contracts and, increasingly, even government regulations. Private standards also hold significant implications for intellectual property lawyers—and their clients—as often the only way companies can conform to private standards is to obtain licenses to use other companies’ patents.
Those of us in the legal profession also ought to know more about private standards because, at least in principle, these standards can serve as substitutes for government regulation. Yates and Murphy ask at the outset of their book why “aren’t governments the ones responsible” for setting all the rules in the first place? The need for coordination and order outpaces what governments can provide, even in advanced economies with well-functioning governments. In countries without well-functional governments, private standards may be the best that it gets.